DfE reiterates that gender segregation is 'unlawful discrimination'

The government has published new guidance to remind mixed schools that segregating pupils by gender is “unlawful discrimination”, following Ofsted’s battle with an Islamic school.

Ofsted criticised Birmingham’s Al-Hijrah school for its policy of teaching boys and girls entirely separately, including making them “walk down separate corridors” and have separate lunchtimes.

In October, the Court of Appeal backed inspectors when it ruled that the school was “unlawful” for the segregation. This overturned a High Court ruling in November 2016, which had said the policy did not break the law because it was “elected for by parents”.

Although its policy has not changed, the Department for Education has now renewed its guidance on gender segregation, warning that any mixed school that denies pupils the chance to interact with the opposite sex “is likely to involve subjecting the pupils to a detriment because of their sex”.

The guidance warns that this is “direct discrimination and will be unlawful”, even if it has been done for “religious or bona fide reasons and even if the quality of the education provided to the boys and girls is the same”.

The only exceptions to the rule are if they fall within section 158 or 195 of the Equality Act, which means that schools can separate pupils by gender if either girls or boys are at a disadvantage because of their sex, have different needs or “disproportionately” low participation, or in the case of “gender-affected” activities such as sports.

A spokesperson for the DfE said mixed schools should only separate children by gender “in very limited circumstances, such as sex education classes”.

“These separations must be clearly justified and should in no way disadvantage pupils. The judgement against Al-Hijrah school reinforced this position and our guidance makes that clear for all schools,” they continued.

Al-Hijrah was rated ‘inadequate’ after an Ofsted inspection in March 2017. Its most recent monitoring visit, which took place in May and was published earlier this month, found that “effective action” was being taken to remove it from special measures.

“We noted that the school continues to operate an unlawful discriminatory policy of strict segregation by sex in year 6 and in the secondary phase. Plans for the school take some account of the need to address this practice,” inspectors warned.

Schools are permitted to teach sex education and elements of PSHE to single-sex classes, as long as appropriate classes are given to both genders. Targeting one gender, such as encouraging girls to study STEM subjects, is allowed, as long as this is not to the detriment of the other.

PE lessons can also be taught separately as long as both genders have equal opportunities to participate in “comparable” sporting activities and neither is treated more favourably, for example with better equipment.

Schools can also choose to separate genders if the segregation “does not subject any pupil to a detriment because it is exceptional and its effect negligible”.  However, schools will have to consider these instances on a case-by-case basis and regularly evaluate the decision.

Schools must also ensure that neither sex receives less favourable treatment, including making sure that both genders can study subjects including metal work and textiles.